STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT STATE OF LOUISIANA NO. 2021 KW 0757

VERSUS

DENNIS PERKINS JULY 7, 2021

In Re: State of Louisiana, applying for supervisory writs, 21st Judicial District Court, Parish of Livingston, No. 40, 299.

BEFORE: WHIPPLE, C. J., WELCH AND WOLFE, JJ.

WRIT DENIED ON THE SHOWING MADE. The State failed to include all of the evidence by the trial court in considered

ruling on the motion to sever in the writ application filed with this court.

VGW EW

Welch, J., dissents and would grant the writ application.

An implied antagonistic defense is insufficient to prove entitlement to a severance. There must be proof of actual antagonistic defenses. While courts have permitted a severance to co- defendants whose defenses are antagonistic to each other, such severance is allowed when the defenses of the co- defendants are mutually antagonistic to the extent that one co- defendant attempts to blame the other, causing each defendant to defend against both his co- defendant and the State. State v. Dilosa, 2001- 0024 ( La. App. 1st Cir. 5/ 9/ 03), 849 So. 2d 657, 669, writ denied, 2003- 1601 ( La. 12/ 12/ 03), 860 So. 2d 1153; State v. Williams, 2016- 417 ( La. App. 5th Cir. 8/ 30/ 17), 227 So. 3d 371, 394, writ denied, 2017- 1663 ( La. 9/ 14/ 18), 252 So. 3d 483.

Although defendant may have established an anticipated justification defense by his co- defendant, he failed to show or even indicate a correlating defense against his co- defendant or how the assertion of such a defense will be unduly prejudicial.

As there was no actual proof of antagonistic defenses presented to the trial court, I believe the trial court abused its discretion in ordering severance in this case.

COURT OF APPEAL, FIRST CIRCUIT

DEPUTY CLERK OF COURT FOR THE COURT